A case brought before the Supreme Court by Planned Parenthood reaffirmed the Roe v. Wade central holding that abortion is legal and should not be abolished, but allowed most of Pennsylvania's abortion restrictions to stand. AP/WIDE WORLD PHOTOS. REPRODUCED BY PERMISSION. Published by Gale Cengage
AP/WIDE WORLD PHOTOS. REPRODUCED BY PERMISSION.

About the Authors: Sandra Day O'Connor (1930–) attended Stanford Law School, graduating third in her class. Because of gender bias, though, no firm would hire her, so she went to work for the government. In 1981, she was nominated by President Ronald Reagan (served 1981–1989) and became the first woman appointed to the United States Supreme Court. William H. Rehnquist (1924–), after military service in World War II (1939–1945), received degrees from Stanford and Harvard, before graduating from Stanford Law School. President Richard Nixon (served 1969–1974) appointed Rehnquist to the Supreme Court in 1971. In 1986, President Ronald Reagan (served 1981–1989) appointed Rehnquist Chief Justice, and Rehnquist has generally led the court in a more conservative direction.

Introduction

Abortion was decried by some ancient medical texts, but most midwives were knowledgeable as to which herbs and roots generally promoted abortion. The common law put much emphasis upon the whole idea of "quickening" or the time when "viability" occurred. Quickening is when fetal movement is first detected in the mother, whereas viability is generally recognized as the point when the fetus might live outside the woman's body. Before the middle of the nineteenth century, abortion was generally criminalized after quickening, but not before. States began to take more of an interest in the matter in the nineteenth century, partly due to the risks of abortion, and partly because abortion was attempted more often through surgical intervention rather than herbs. During the first three-quarters of the twentieth century, abortion became a much safer procedure when performed in a hospital and by registered medical personnel. When abortion was not legally available, many women died from illegal or self-induced abortions.

During this time as well, the legal system became much more interested in the individual. The Supreme Court shifted its focus from economic regulations to individual rights. Louis Brandeis argued for the "right to be let alone" as part of a right to privacy as early as 1928. The later Supreme Court built upon this right to overturn a Connecticut ban on the use of contraceptives. In 1973 this right was used to strike down a Texas law banning abortions in Roe v. Wade. In that case, Justice Blackmun balanced the privacy interest of the mother against the state's interest in potential life. Blackmun devised an approach based on the trimesters of a pregnancy: prior to the end of the first trimester, the abortion decision was left to the woman and her attending physician; in the second trimester, the state could regulate the abortion procedure in ways reasonably related to maternal health; in the third trimester, after viability, the state could promote its interest in the potentiality of human life, and ban abortion except for the preservation of the life or health of the mother.

This decision provoked a firestorm of controversy, and many candidates for public office argued for a constitutional amendment overturning Roe. Ronald Reagan, while running for the presidency, promised to appoint Supreme Court justices who would oppose Roe. In 1983, the Supreme Court, in Akron v. Akron Center for Reproductive Health struck down Akron's abortion regulations. However, Justice O'Connor, Reagan's first appointment, indicated a desire in Akron to see Roe overturned. In 1989, the Supreme Court upheld a ban on public facilities being used in elective abortions in Webster v. Reproductive Health Services. The next major case on abortion was Casey in 1992. By that point, Presidents Reagan and Bush (served 1989–1993) had appointed five justices, and many thought that Roe might be overruled.

Significance

In Casey, the justices in the "ideological center" of the court determined that Roe not be overturned. O'Connor, in an apparent change from her earlier position, makes a cogent plea for Roe, arguing that in order for the rule of law to survive, stare decisis (the idea that decisions should stand unless there is a reason for overturning them) must generally control the law on abortion, unless there is a fundamental reason to overrule the prior decision. This indicates a shift in O'Connor's thinking, and her creation of a "center" on the court identifies her as a major force. The Supreme Court, though, did allow most of Pennsylvania's restrictions to stand—including informed consent, parental consent for minors seeking abortions, and a twenty-four-hour waiting period after informed consent was given. The court replaced the trimester framework of Roe with the standard of viability being the point at which the state could begin to interfere generally; before viability, the state could not place an "undue burden" on the woman seeking an abortion. The dissent strongly argued for the upholding of Webster, and a further move away from Roe. Few major abortion decisions have come since, but with the possible appointment of new justices, as several on the court approach retirement, the fate of Roe v. Wade still hangs in the balance.

SYNOPSIS: Justice O'Connor, joined by Justices Kennedy and Souter, first reaffirms Roe's central holding that abortion is legal and notes that previous constitutional rulings should not be overturned unless constitutional thought greatly changes; and it has not. The authors then note that the trimester system of Roe is unworkable, and hold that the state's interest becomes compelling at the point of viability. Chief Justice Rehnquist dissents, arguing explicitly that Roe only stands because of stare decisis, and implicitly, that it should be overruled. Furthermore, he states that the approach in Webster, not that of the plurality in this case, provides the sounder basis for the law in this area.

Justice O'Connor, Justice Kennedy, and Justice Souter announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, V-C, and VI, an opinion with respect to Part V-E, in which Justice Stevens joins, and an opinion with respect to Parts IV, V-B, and V-D.

I.

Liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, … that definition of liberty is still questioned. Joining the respondents

as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe.…

At issue in these cases are five provisions of the Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989.…

It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaf-firm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.

II.

Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life, liberty, or property, without due process of law." The controlling word in the cases before us is "liberty." Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, the Clause has been understood to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them." … Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States.… [T]he guaranties of due process, though having their roots in Magna Carta's "per legem terrae" and considered as procedural safeguards "against executive usurpation and tyranny," have in this country "become bulwarks also against arbitrary legislation." …

The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States.… It is tempting, as a means of curb ing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution.… But of course this Court has never accepted that view.…

Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.…

The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which, by tradition, courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office.…

Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest.

It is conventional constitutional doctrine that, where reasonable people disagree, the government can adopt one position or the other.… That the orem, however, assumes a state of affairs in which the choice does not intrude upon a protected liberty. Thus, while some people might disagree about whether or not the flag should be saluted, or disagree about the proposition that it may not be defiled, we have ruled that a State may not compel or enforce one view or the other.…

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.… Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.… Our prece dents "have respected the private realm of family life which the state cannot enter." … These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

These considerations begin our analysis of the woman's interest in terminating her pregnancy, but cannot end it, for this reason: though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise. Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one's beliefs, for the life or potential life that is aborted. Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition, and so, unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.…

While we appreciate the weight of the arguments made on behalf of the State in the cases before us, arguments which in their ultimate formulation conclude that Roeshould be overruled, the reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given, combined with the force of stare decisis. We turn now to that doctrine.

III.

… The Court's duty in the present case is clear. In 1973, it confronted the already-divisive issue of governmental power to limit personal choice to undergo abortion, for which it provided a new resolution based on the due process guaranteed by the Fourteenth Amendment. Whether or not a new social consensus is developing on that issue, its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, has grown only more intense. A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe's original decision, and we do so today.

IV.

From what we have said so far, it follows that it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy. We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate. The woman's liberty is not so unlimited, however, that, from the outset, the State cannot show its concern for the life of the unborn and, at a later point in fetal development, the State's interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted.

That brings us, of course, to the point where much criticism has been directed at Roe, a criticism that always inheres when the Court draws a specific rule from what in the Constitution is but a general standard. We conclude, however, that the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, require us to perform that function. Liberty must not be extinguished for want of a line that is clear. And it falls to us to give some real substance to the woman's liberty to determine whether to carry her pregnancy to full term.

We conclude the line should be drawn at viability, so that, before that time, the woman has a right to choose to terminate her pregnancy.…

The woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.…

We give this summary:

To protect the central right recognized by Roe v. Wade while at the same time accommodating the State's profound interest in potential life, we will employ the undue burden analysis as explained in this opinion. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.

We reject the rigid trimester framework of Roe v. Wade. To promote the State's profound interest in potential life, throughout pregnancy, the State may take measures to ensure that the woman's choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right.

As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.

Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding. Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.

We also reaffirm Roe's holding that, subsequent to viability, the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.…

Chief Justice Rehnquist, with whom Justice White, Justice Scalia, and Justice Thomas join, concurring in the judgment in part and dissenting in part.

The sum of the joint opinion's labors in the name of stare decisis and "legitimacy" is this: Roe v. Wade stands as a sort of judicial Potemkin Village, which may be pointed out to passers-by as a monument to the importance of adhering to precedent. But behind the facade, an entirely new method of analysis, without any roots in constitutional law, is imported to decide the constitutionality of state laws regulating abortion. Neither stare decisis nor "legitimacy" are truly served by such an effort.

We have stated above our belief that the Constitution does not subject state abortion regulations to heightened scrutiny. Accordingly, we think that the correct analysis is that set forth by the plurality opinion in Webster. A woman's interest in having an abortion is a form of liberty protected by the Due Process Clause, but States may regulate abortion procedures in ways rationally related to a legitimate state interest.